妨害司法罪与共犯

Offences against the Administration of Justice and Complicity

有关伪证罪的处罚规定,中外刑法理论界一般认为,由于被告人本人在现行刑事诉讼制度下不能成为证人,因此,不能成为该罪的犯罪主体。同样,有关窝藏、包庇罪的处罚规定,中外刑法理论界一般也认为,犯罪人本人不能成为该罚的犯罪主体。但是,犯罪人本人教唆他人为自己作伪证或要求帮助窝藏、包庇时,作为教唆犯能否成为处罚的对象,在大陆法系的刑法理论界则有激烈的争论。另外,由于大陆法系部分国家的刑法有近亲属藏匿、包庇犯罪人不构成窝藏、包庇罪的特别规定,因此,这一问题变得更加复杂。

As for the punishment regulations concerning crime of perjury, it is generally hold, in the theoretical circle of criminal law in both China and other countries, that the accused person, in accordance with current criminal lawsuit system, cannot be the witness so that he/she cannot be the subject of the perjury crime either. Like- wise, as for the punishment regulations concerning crime of protecting or harboring a criminal, it is also generally hold, in the theoretical circle of criminal law in both China and other countries, that the offender cannot be the subject of punishment by the crime of protecting or harboring a criminal. However, in the theoretical circle of criminal law under the Continental Legal System, there have been hot controversies as to whether the offender should be punished as an abettor if he/she induces another person to commit perjury or to conceal his/her criminal misdoings. Moreover, in some countries under the Continental Legal System, there are special regulations stating that protecting and harboring the criminal by the immediate relatives shall not be taken as committing crimes of concealing the criminal, which has made the legal situation more complicated.